Getting a full discount

The Criminal Justice and Immigration Act 2008 (CJIA) has had a significant impact on arrangements for crediting time spent on remand subject to a curfew to subsequent custodial sentences.

Section 21 CJIA provides that, subject to certain conditions, where a court sentences an offender to imprisonment for an offence committed on or after 4 April 2005, and the offender had been remanded on bail with a condition of curfew lasting nine hours or more each day, the court must (in ordinary circumstances) direct that half of the period of days subjected to curfew is to count as 'time already served' by the offender (see 'Once punished, but twice served?' Solicitors Journal, 16 September 2008). A similar provision applies to those sentenced for offences committed prior to 4 April 2005, in accordance with s.23 and sched.6 CJIA.

The CJIA (Commencement No.3 and Transitional Provisions) Order 2008 (SI 2008/2712) brought into force the material parts of ss.21 to 23 CJIA from 3 November 2008. This date is important because it is only where the defendant has been remanded on bail with curfew requirement after this date that the provisions for crediting time against the later-imposed custodial sentence apply.

Those who do not qualify

In the recent case Sherif [2008] EWCA Crim 2653, the Court of Appeal considered the position of those who do not qualify for the newly-implemented provisions. The appellants were granted bail subject to curfew. Five were made subject to a 24-hour electronically monitored curfew '“ effectively house arrest.

The appellants argued that the custodial sentences should reflect these periods of curfew as, in particular for those subjected to house arrest, that amounted to a deprivation of liberty which, although not as serious as a remand in custody, nonetheless had a similar effect. It was accepted that under current legislation there was no statutory provision which required the court to do so, but reliance was placed on s.21(4) CJIA, which introduced s.240A of the Criminal Justice Act 2003 (CJA 2003). It was submitted that the court should reflect the fact that parliament had now passed this Act.

The court considered the case of Glover, Cox and Issitt [2008] EWCA Crim 1782, where the appellant had been effectively subject to a 24-hour electronically monitored curfew. Hughes LJ (at para.14) indicated that it was incorrect to equate time spent under a home curfew with time in prison, because life at home was clearly preferable to life in prison. However, he continued: 'It is possible that in some circumstances a judge might be persuaded by the facts of a particular case to make some modest adjustment in the final sentence in circumstances of this kind, but it seems to us that that is a question of assessment by the judge in each case.'

The Court of Appeal in Sherif concluded: 'In our view, until s.240A comes into force, a court should deal with the matter in the way suggested by Hughes LJ at least in relation to house arrest. This may justify a modest period of credit in cases such as the present one. The periods spent under house arrest were substantial, in the region of 16 months, the figure we consider appropriate is three months. But the same considerations do not apply where the curfew is in the night. A curfew period of this sort has been commonplace for many years; and while the court may of course have had regard to the restriction of liberty, it has not in the past made any formal reduction for such a curfew.'

Credit for curfew periods

Where directly applicable, these statutory provisions now require the attention of defendants' representatives (and the courts) whenever a curfew is being imposed to ensure they qualify for the potential credit, and where such curfew has been imposed require calculation to be made to credit the correct number of days in the event the defendant receives a sentence of imprisonment. The recent decision of the Court of Appeal also makes clear that for a curfew amounting to house arrest some deduction is properly called for even in cases to which the new provisions do not apply, and practitioners should be alert to this in cases still to reach conclusion that involve such curfew periods.

It remains to be seen what approach the judiciary will take to the new provisions. Section 240(4) CJA 2003 provides that the court must credit time spent on remand in custody unless it is just in all the circumstances not to give such direction. In practice, such failure to credit the full amount is unheard of outside situations where the defendant would otherwise receive a double discount.

Even where time on remand led to the opportunity for a community order or suspended sentence to be imposed which has later been breached, this was not sufficient reason to deny full credit (see Stickley [2007] EWCA Crim 3184; Fairbrother [2007] EWCA Crim 3280). Identical wording is used for the discretion in s.240A(4). This would suggest that there is here greater scope for argument as to the justice of allowing the full discount envisaged by the section. For example, its standard application could mean a defendant who has spent a considerable period subject to night-time curfew awaiting his trial and is sentenced to custody commensurate with his offence may conceivably escape spending any time behind bars because he receives credit which would mean he had served his sentence. Should a court consider an alternative to custody in such circumstances so that the aggrieved may feel the conviction leads to some punishment; must the full credit be given; or should the court decline to allow the credit the section provides for? These issues seem set to trouble the Court of Appeal.